[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 13-13800

_____________________________

D.C. Docket No. 7:12-cv-00089-HL

THOMAS HAYDEN BARNES,

 Plaintiff - Appellant,

versus

RONALD M. ZACCARI, 

individually and in his official capacity as 

President of Valdosta State University, 

VALDOSTA STATE UNIVERSITY,

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, 

LAVERNE GASKINS,

individually and in her official capacity as 

in-house counsel at Valdosta State University,

KURT KEPPLER, 

individually and in his official capacity as Vice President 

for Student Affairs at Valdosta State University, et al.,

 Defendants- Appellees.

_______________________

Appeal from the United States District Court

for the Middle District of Georgia

_______________________

(January 12, 2015)

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Before JORDAN and BENAVIDES,* Circuit Judges, and BARTLE,

** District 

Judge.

PER CURIAM:

I. BACKGROUND

This action was brought by Plaintiff-Appellant Thomas Hayden Barnes 

(“Barnes”) against Valdosta State University (“VSU”) and various VSU officials 

and employees, alleging constitutional and statutory violations and breach of 

contract. During the relevant time period in 2007, Barnes was a student at VSU. 

Barnes had previously been enrolled at VSU in the fall of 2005 as a transfer 

student, but he subsequently left while on academic probation to attend paramedic 

school in Savannah, Georgia in 2006. In January 2007, Barnes re-enrolled at VSU

and contacted the VSU Access Office, which provides services to students with 

disabilities, to register as an on-campus disabled student suffering from a panic 

disorder with agoraphobia. Dr. Kimberly Tanner, Director of the VSU Access 

Office, assisted Barnes in submitting the proper documentation of his disability 

and to assist him in securing housing accommodations that VSU had available for 

Barnes. After re-enrolling at VSU, Barnes resumed therapy sessions with Leah 

McMillan (“McMillan”), a licensed therapist at VSU’s counseling center.

 * The Honorable Fortunato P. Benavides, United States Circuit Judge for the Fifth 

Circuit, sitting by designation.

** The Honorable Harvey Bartle III, United States District Judge for the Eastern District 

of Pennsylvania, sitting by designation.

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VSU had experienced a growth in student population, and VSU had a longterm development plan to accommodate that growth. Part of that plan included the 

construction of a parking garage. In March of 2007, Barnes became concerned 

about the potential environmental impact of the parking garage and put up flyers 

protesting the construction. After Defendant-Appellee Dr. Ronald Zaccari

(“Zaccari”), the President of VSU, became aware of the flyers, he asked his 

assistant to find out who was responsible for them. She informed him that Barnes 

had made the flyers.

On March 26, Zaccari had an unrelated meeting with an environmental 

campus organization named “S.A.V.E.” During that meeting, he inquired whether 

the members knew Barnes. They told him that Barnes had been part of their 

organization but had decided to “go off on his own.” After the meeting, one of the 

members apparently informed Barnes that Zaccari had made a comment about the 

flyers. Barnes then wrote a letter of apology and took down the flyers. Zaccari 

believed that this meant Barnes was no longer protesting the construction of the 

parking garage.

However, Barnes had been contacting the individual members of the VSU 

Board of Regents by telephone and email in anticipation of the Board’s upcoming 

meeting on April 17, 2007, to voice his opposition to the parking garage. Zaccari 

learned of these communications when Linda Daniels (“Daniels”), a Vice 

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Chancellor, contacted Zaccari and informed him that she was concerned that 

Barnes might disrupt the Board meeting. Daniels asked campus police at Georgia 

Southern University, where the meeting was to be held, to provide additional 

security as a precaution. 

On April 16, Zaccari learned of the fatal shootings that had taken place on 

Virginia Tech’s campus. These fatal shootings caused Zaccari to have a 

heightened concern regarding campus safety at VSU. That same day, Barnes 

called Zaccari to request a meeting, and Zaccari met with Barnes at 5pm. Russ 

Mast (“Mast”), Dean of Students, was also present at this meeting. They discussed 

Barnes’s opposition to the parking garage. Zaccari explained how VSU had 

approved the construction and funding of the parking garage. Zaccari felt that 

Barnes was unresponsive despite what he believed were attempts to have a 

productive discussion. Zaccari admitted that he was “stern” with Barnes. Zaccari

told Barnes that he was “personally offended” by Barnes’s activities and “didn’t 

know what to do with [Barnes].” Zaccari “was upset that Hayden had [gone] to the 

members of the Board of Regents and [said] that he was embarrassed that [Barnes] 

did not come and talk to him about that.” Ultimately, Barnes assured them that he 

did not plan to attend or protest at the board meeting. 

After meeting with Barnes, Zaccari learned that Barnes had been writing 

about the parking garage on his Facebook page. Zaccari was subsequently given a 

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copy of what Barnes had posted on Facebook, a collage titled “S.A.V.E. – Zaccari 

Memorial Parking Garage,” which included a picture of Zaccari. Zaccari told his 

staff that he felt threatened by the posting. 

On April 19, VSU’s newspaper published Barnes’s letter to the editor 

criticizing the construction of the parking garage. On April 20, Zaccari met with 

Mast, Campus Police Major Ann Farmer (“Major Farmer”), Dr. Kurt Keppler

(“Keppler”), Vice President of Student Affairs, and Tanner, to discuss Zaccari’s 

concerns and to begin an investigation of Barnes. Zaccari informed the group that 

Barnes had distributed flyers on the campus protesting the parking garage and 

made phone calls to individual members of the Board of Regents. He showed the 

group the collage that Barnes had posted on his Facebook page. He also told the 

group that an intruder had tripped the alarm at his residence and that he had been 

receiving calls from a male individual asking for the “business office” and then 

hanging up the phone. No evidence ever connected Barnes to the alarm or the 

phone calls. 

Tanner told the group that Barnes was registered with the Access Office and 

revealed some of his medical background, including that Barnes had a thought 

depressive disorder, agoraphobia, and panic disorder. She also said that Barnes 

was now on medication but had previously been hospitalized due to an inability to 

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function. Additionally, Tanner stated that Barnes had been admitted to VSU on 

academic probation. 

Major Farmer took contemporaneous meeting notes that indicated that Mast 

suggested that the Facebook collage could be viewed as a veiled threat and used as 

a basis for a disorderly conduct withdrawal. It is not apparent to us that this 

collage on its face directly or indirectly expresses a threat or suggests that harm 

would come to Zaccari or anyone else. The notes also provided that Zaccari 

pointed out that board member Daniels had been so concerned about Barnes’s 

phone calls that she had alerted the campus police department at Georgia Southern 

University prior to the board meeting. 

At one point during the meeting, Major Farmer advised Zaccari to apply for 

a restraining order against Barnes if he felt threatened. However, Zaccari never 

applied for a restraining order. After this meeting, Farmer investigated Barnes and 

determined that there was no credible threat.

 On April 23, Barnes sent Zaccari a letter requesting that he be exempted 

from the $100 mandatory student fee that he believed was earmarked for the 

parking garage. Barnes also wrote that he would contribute $100 to an 

“environmental-related program on campus to compensate for the loss to the 

University’s revenue.” 

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On April 24, Zaccari asked McMillan, Barnes’s therapist, to obtain 

background information on Barnes and to provide her assessment of Barnes, and 

the two met to discuss Barnes. McMillan told Zaccari that Barnes was having 

difficulty with his classes and that his grades might not make the probationary 

level to allow him to remain at VSU. In addition, Barnes had lost his employment 

and his medication was not working properly. She also told Zaccari that Barnes 

had not seen his psychiatrist for some period of time.

During this same week, Zaccari called another meeting with Farmer, Mast, 

and Keppler. Zaccari told the group that Barnes had sent a letter requesting to be 

exempt from the $100 fee. Additionally, Zaccari reported that Barnes placed a link 

on his Facebook page to an article that discussed the mentally ill shooter from 

Virginia Tech. Zaccari informed the group that he had spoken to Barnes’s 

previous employer at the South Georgia Medical Center, where he had worked as 

an emergency medical technician. He had been put on probation and then 

terminated. Per Zaccari’s request at the meeting, Farmer arranged for two plainclothes security officers to guard Zaccari at certain functions. 

On May 1, Zaccari had a discussion with Laverne Gaskins (“Gaskins”), inhouse counsel for VSU, and Betsy Neely, Vice Chancellor for Legal Affairs for the

Board of Regents, regarding VSU’s medical withdrawal policy. Under this policy, 

if there was an emergency situation, the student would not receive a hearing. 

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Zaccari asked about administratively withdrawing Barnes, and Neely told him to 

do what he had to do to keep the campus safe and that they would worry about a 

lawsuit at a later date.1

 

On May 3, Zaccari met with Gaskins; Farmer; Keppler; Mast; Tanner; and

Victor Morgan (“Morgan”), Director of VSU’s Counseling Center. Zaccari said 

that if they were to proceed with a disorderly conduct withdrawal, they would have 

to convene a student-faculty review. Gaskins expressed concerns that Barnes was 

entitled to have a hearing. Zaccari then stated that if they implemented an 

administrative withdrawal, they needed to show a threat to Barnes himself or the 

community. Zaccari mentioned that they “must be concerned with First 

Amendment rights, but first we have to look at the safety issue. Ultimately, we 

have to have documentation to support that [Barnes] is a danger and a threat.” He 

then asked the group, “How do we present to a third party that a threat exists?” 

Zaccari then stated that Barnes’s putting up flyers, writing an apology letter, 

calling board members, and his writings on Facebook were “out of the norm.” 

Zaccari told the group that Neely had previously asked him why he did not 

withdraw Barnes immediately. However, Zaccari stated that he wanted to allow 

Barnes to finish final exams that week, and Zaccari “didn’t want to cause an uproar 

that could cause a flashpoint.” 

 

1

 After an administrative withdrawal, a student may be eligible to be readmitted to VSU. 

After an expulsion, generally speaking, a student is not eligible to be readmitted.

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Zaccari indicated that if Barnes was administratively withdrawn, there was 

no need to have a hearing. Keppler stated that the counselors would not state that 

Barnes was a threat to safety. Gaskins stated that there had to be evidence of a 

threat. Gaskins then asked: “Do we act on the administrative withdrawal?” At 

that point, either Gaskins or Zaccari explained that “an administrative withdrawal 

would contain requirements or conditions, one of which could be a re-evaluation 

[of Barnes] in three to four months from now based on information obtained over 

the summer.” Morgan responded that Barnes would have to follow the instructions 

given to him by the counseling center. 

Keppler interjected that they should “go the route” of Barnes’s grade point 

average, apparently referring to withdrawal on an academic basis. Tanner 

responded that Barnes had told her he was not going to fail his classes that

semester. Zaccari stated that he would meet with Gaskins on Monday to determine 

the conditions that would allow Barnes readmission to VSU after having been 

administratively withdrawn. Gaskins stated that “it is not ‘if’ but ‘when’ will 

[Barnes] sue over this.” Gaskins also stated that “an emergency withdrawal must 

rest on mental health with a clear and present danger.” 

It was then discussed whether the withdrawal letter should be delivered by 

certified mail, campus police, or the department. It was decided that because the 

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letter was coming from the President’s office, it should be delivered by that

department. 

On May 7, at Zaccari’s request, Gaskins drafted the letter to administratively 

withdraw Barnes. Gaskins attached a memo to Zaccari, explaining that Barnes was 

entitled to notice and a hearing. That same day, the letter was delivered to 

Barnes’s dorm room, and it informed Barnes that “[a]s a result of recent activities 

directed towards me by you, included but not limited to the attached threatening 

document, you are considered to present a clear and present danger to this 

campus.” The attached document was the above-mentioned collage posted by 

Barnes on Facebook. The letter provided that Barnes was administratively 

withdrawn from VSU effective that day. He was not afforded a hearing. However, 

Barnes was given 48 hours to vacate the residence hall. The letter further

explained that Barnes could be readmitted if he submitted: (1) correspondence 

from a psychiatrist outside of VSU that found he was not a danger to himself and 

others; and (2) documentation from a mental health professional stating that he 

would receive on-going therapy while at VSU. 

Barnes appealed to the Board of Regents, and in support of his appeal, he 

attached, among other things, a letter written by McMillan and a letter written by 

Dr. Kevin Winders, his psychiatrist in Savannah, Georgia. McMillan’s letter stated

that in her professional opinion as Barnes’s counselor, he was not a threat—

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indirectly or directly—to anyone on campus.

2

 McMillan’s letter also provided that 

if Barnes returned to VSU, she would continue seeing him in the counseling center. 

Dr. Winders’s letter to the Board stated that he did not think that Barnes was 

violent or a threat to campus. 

The Board requested a response from Zaccari regarding Barnes’s 

administrative withdrawal. Zaccari drafted a response for the Board, and Gaskins 

assisted him in editing the letter, which was sent on June 21. On January 17, 2008, 

the Board set aside Barnes’s administrative withdrawal without comment.

Meanwhile, on January 9, 2008, Barnes brought suit in the Northern District 

of Georgia against Zaccari, VSU, VSU’s Board of Regents, McMillan, Gaskins,

Keppler, Mast, and Morgan. The suit alleged, among other things, violations of 

procedural and substantive due process, retaliation for exercising his right to free 

speech under the First Amendment, and breach of contract. Barnes voluntarily 

dismissed one defendant, Morgan, prior to the filing of summary judgment 

motions. The district court granted summary judgment in favor of Barnes on his 

claim of a violation of procedural due process against Zaccari because Zaccari did 

not afford Barnes a pre-withdrawal notice of the charges against him or a hearing. 

Barnes v. Zaccari, 757 F.Supp.2d 1313, 1337–38 (N.D. Ga. 2010). The district 

 

2

 During his deposition, Zaccari described McMillan as an “integral part of 

investigating” Barnes. Zaccari testified that he was “surprised” by the letter and “felt a little bit 

blind-sided” by it. 

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court also granted Barnes summary judgment against the Board of Regents on his 

breach-of-contract claim. Id. at 1338.3

 The district court granted summary 

judgment in favor of the Defendants on the remaining claims, including Barnes’s 

claim of retaliation for exercising his right to free speech under the First 

Amendment. Id. at 1326–38.

 Zaccari and the Board of Regents filed an interlocutory appeal to this Court 

with respect to whether Zaccari was entitled to qualified immunity and whether the 

Board of Regents was entitled to Eleventh Amendment immunity. Barnes v. 

Zaccari, 669 F.3d 1295, 1298 (11th Cir. 2012).

4

 This Court held that Zaccari was 

not entitled to qualified immunity because it was clearly established that although 

Barnes “was due some predeprivation process,” he received none. Id. at 1308. 

However, this Court explained that the issue of whether Zaccari was entitled to 

qualified immunity did “not drop out of the case.” Id. The Court further explained 

that the district court could “use a special verdict or written interrogatories to 

determine any disputed facts and the reasonable inferences drawn from those 

facts.” Id. After resolution of the factual issues, Zaccari could raise his defense of 

qualified immunity in a motion for judgment as a matter of law. Id. With respect 

 

3

 The court found that VSU was an improper party to the lawsuit. Barnes, 757 

F.Supp.2d at 1334. The Board of Regents was the proper party to name as a defendant in the 

lawsuit. Id. 

4 Barnes filed a cross appeal, and this Court held that it did not have jurisdiction over 

those claims because the district court had not yet entered final judgment. Barnes, 669 F.3d at 

1302 n.6. 

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to the breach-of-contract claim, this Court reversed the district court, holding that 

Georgia had not waived its sovereign immunity and thus, the district court did not 

have jurisdiction to reach the breach-of-contract claim against the Board of 

Regents. Id. at 1308–09. The case was remanded to the district court with 

instructions to (1) dismiss the claim against the Board of Regents, and (2) proceed 

to trial on the issue of damages as to the procedural due process violation. Id. On 

remand, Zaccari filed a motion to transfer, and the case was transferred from the 

Northern District of Georgia to the Middle District of Georgia.

The district court divided the jury trial on the issue of damages into three 

phases. The first phase of trial involved the amount of damages. The second 

phase was to determine punitive damages, if necessary, and the third phase of trial 

was to resolve any outstanding evidentiary disputes regarding qualified immunity. 

A jury determined that Barnes was entitled to $50,000 in damages stemming from 

the violation of his procedural due process rights. The jury also determined that 

punitive damages were not warranted, rendering the second phase of trial 

unnecessary. The parties waived a jury trial with respect to the third phase, and the 

district court, acting as the fact-finder, found that “Zaccari has not been able to 

demonstrate a factual basis for his claim that there was an emergency situation.” 

Order at 24 (July 24, 2013) (citing Goss v. Lopez, 419 U.S. 565, 582–83 (1975)). 

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Thus, the court ruled that Zaccari was not entitled to qualified immunity as a 

matter of law with respect to Barnes’s claim of a procedural due process violation. 

The district court awarded Barnes $407,242 in attorney’s fees based on the 

successful prosecution of his claim of a procedural due process violation against 

Zaccari. Additionally, because the court ruled that Barnes’s claims against 

McMillan, Gaskins, VSU, Keppler, Mast, and Morgan were frivolous, the court 

awarded those defendants $396,224.50 in attorney’s fees.

Barnes now appeals the district court’s grant of summary judgment with 

respect to (1) his retaliation claim against Zaccari, (2) the amount of attorney’s fees 

awarded to him as the prevailing plaintiff, and (3) the award of attorney’s fees to 

the Defendants. We hold that the district court erred in granting summary 

judgment in favor of Zaccari on the retaliation claim and therefore vacate and 

remand that claim to the district court. We also vacate and remand the judgment 

awarding attorney’s fees to Barnes. We reverse the award of attorney’s fees to 

McMillan, Keppler, Mast, and Gaskins. We vacate and remand the award of 

attorney’s fees to Morgan and VSU for recalculation.

II. FIRST AMENDMENT RETALIATION CLAIM

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Barnes argues that the district court erred in granting summary judgment in 

favor of Zaccari with respect to his First Amendment retaliation claim. This Court 

reviews a district court’s grant of summary judgment de novo and views the 

evidence in the light most favorable to the non-moving party. Castle v. 

Appalachian Technical Coll., 631 F.3d 1194, 1197 n.2 (11th Cir. 2011).

A. Individual Claim of Retaliation 

This Court has explained that to state a claim for retaliation, the plaintiff 

“must establish first, that his speech or act was constitutionally protected; second, 

that the defendant’s retaliatory conduct adversely affected the protected speech; 

and third, that there is a causal connection between the retaliatory actions and the 

adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 

2005). In his complaint before the district court, Barnes asserted that Zaccari

retaliated against him by having him withdrawn from VSU for exercising his free 

speech rights under the First Amendment.5 The district court specifically noted 

that the complaint did not “contain a stand alone claim for retaliation against 

Zaccari.” Barnes, 757 F.Supp.2d at 1333 n.28. Instead, the district court construed 

Barnes’s retaliation claim as raising only a conspiracy claim. The court concluded 

that there was “an absence of evidence to support a finding that Zaccari made an 

 

5 In Barnes’s notice of appeal, he only sought review of the denial of his First 

Amendment retaliation claim against Zaccari. Barnes does not appeal the district court’s grant of 

summary judgment in favor of the remaining Defendants on his retaliation claim. 

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agreement with anyone else to retaliate against Barnes for exercising his freedom 

of speech rights.” Id. at 1333. More specifically, the court found that the 

“undisputed facts show that Zaccari alone made the decision to administratively 

withdraw Barnes from VSU.” Id. at 1325. The court concluded that “Zaccari did 

not participate in any sort of conspiracy because no one would agree with [his] 

decision to withdraw Barnes.” Id. at 1333. Accordingly, the court granted 

summary judgment in favor of Zaccari on the retaliation claim. We note that the 

court did not expressly reach the question of whether Zaccari retaliated against 

Barnes for exercising his free speech rights under the First Amendment. Instead, it 

held that there was no showing that Zaccari conspired with the other Defendants to 

retaliate against Barnes. 

On appeal, Barnes argues that the district court erred in ruling that Count 3 

of his complaint did not raise an individual retaliation claim against Zaccari. We 

must therefore determine whether Barnes’s complaint raised an individual 

retaliation claim (as opposed to only raising a claim of conspiring to retaliate) 

against Zaccari. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that 

a complaint contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” A complaint must give the defendants fair notice of 

the bases for relief and the grounds upon which the claim rests. Erickson v. 

Pardus, 551 U.S. 89, 93 (2007). 

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Count 3 of the complaint is entitled “42 U.S.C. § 1983: Individual Liability 

Free Speech Clause Violation (Individual Defendants in Personal Capacity).” 

Complaint at 25. Although not dispositive, we note that the title of the claim did 

not refer to a conspiracy. In fact, the text of Count 3 had only one reference to a 

conspiracy, alleging that the “Defendants’ actions in conspiring to expel Barnes 

from VSU were taken in retaliation for Barnes’s exercise of his First Amendment 

freedoms.” However, simply alleging a conspiracy is not enough to sufficiently 

plead a claim of conspiracy. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.”). In any event, we need not determine 

whether a conspiracy claim was adequately pleaded, because we are convinced that 

the complaint sufficiently pleaded a claim for individual retaliation against Zaccari. 

The complaint contains several factual allegations that support an individual

claim against Zaccari for retaliating against Barnes for exercising his First 

Amendment rights. See, e.g., Complaint at 10 (“Barnes was informed by 

classmates involved with a campus environmental advocacy organization . . . that 

President Zaccari was upset with Barnes’s speech activities and had contacted the 

group to express his displeasure, particularly with the fliers”); id. at 12 (“Zaccari 

told Barnes that Barnes’s speech activities had embarrassed him”); id. at 13 

(alleging that Zaccari met with VSU officials and faculty and “expressed 

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substantial anger towards Barnes, especially regarding the fliers that previously 

were posted around campus”); id. (“Zaccari then decided to use the Facebook 

posting, along with his awareness that Barnes had availed himself of campus 

counseling services, to concoct a claim, in retaliation for Barnes’s speech activities 

questioning his parking garage plans, that Barnes represented some kind of 

danger”);6 id. at 26 (Zaccari’s “stated reasons for expelling Barnes from VSU were 

pretextual and had no rational basis, being wholly contradicted by the views of 

mental health professionals, communicated to [Zaccari], that Barnes posed no 

threat to self or others at any time”). 

Further, the record demonstrates that Zaccari received fair notice of Barnes’s 

individual retaliation claim against him because Zaccari’s briefing with respect to 

the motion to dismiss and the motion for summary judgment did not even mention 

a conspiracy claim. See Erickson v. Pardus, 551 U.S. at 93 (explaining that a 

defendant must receive fair notice of the bases for relief and the grounds upon 

which the claim rests). In sum, we conclude that the district court erred in reading 

the complaint too narrowly when it ruled that there was no “stand-alone” or 

individual retaliation claim against Zaccari. We therefore vacate the grant of 

summary judgment as to Barnes’s individual retaliation claim against Zaccari and 

 

6 As noted by the district court, Barnes had “created a satirical collage protesting the 

[parking garage], which he posted on his Facebook website.” Barnes, 757 F. Supp. 2d at 1317; 

see id. at 1317 n.6.

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remand it to the district court to address in the first instance. Cf. Branscomb v. 

Sec’y of the Navy, 461 F. App’x 901, 906 (11th Cir. 2012) (per curiam) (remanding 

a retaliation claim to the district court to allow it to address the claim in the first 

instance).

B. Qualified Immunity as to First Amendment Retaliation Claim

Zaccari argues that he is entitled to the defense of qualified immunity 

because he withdrew Barnes from VSU based on Barnes’s threatening behavior 

and perceived mental instability, and not because of Barnes’s speech activities. 

The district court never addressed whether Zaccari was entitled to qualified 

immunity with respect to the First Amendment retaliation claim because it ruled 

that Barnes’s complaint had not raised an individual claim of retaliation against 

Zaccari.7

 As set forth above, we are vacating and remanding the summary 

judgment on this First Amendment retaliation claim. Thus, on remand, the district 

court will have the opportunity to address whether Zaccari is entitled to qualified 

immunity on the retaliation claim. See Hart v. Hodges, 587 F.3d 1288, 1300 (11th 

 

7 However, the district court did address the issue of whether Zaccari was entitled to 

qualified immunity with respect to the due process claim, which is not before this Court on 

appeal. With respect to that issue, the parties had waived a jury trial and therefore, the district 

court, acting as the fact-finder, held that “as a matter of fact, Zaccari could not, and did not, 

reasonably believe there was an emergency on the campus of VSU during spring 2007.” Order 

at 23 (July 24, 2013). Based on that factual finding, the court held that Zaccari had no defense 

for violating Barnes’s due process rights by failing to give him a predeprivation hearing. The 

district court therefore denied qualified immunity as to the due process claim. However, the 

district court did not address whether Zaccari was entitled to qualified immunity with respect to 

the retaliation claim, which has different elements from a due process claim.

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Cir. 2009) (explaining that because the issue of qualified immunity was not 

decided in the district court, the Court would remand it to allow the district court to 

decide it in the first instance).

III. ATTORNEY’S FEES

A. Attorney’s Fees Award to Barnes

Barnes contends that the district court erroneously discounted the attorney’s 

fees awarded to him as a prevailing plaintiff against Zaccari. In light of our 

holding that the district court erred in granting summary judgment against Barnes 

and in favor of Zaccari on the retaliation claim, we are remanding the claim to the 

district court. Accordingly, the attorney’s fee award to Barnes will have to be 

recalculated once the retaliation claim is resolved. Nonetheless, in the interest of 

efficiency, we provide some guidance by addressing Barnes’s arguments to the 

extent they may be relevant on remand. See ACLU of Ga. v. Barnes, 168 F.3d 423, 

438 (11th Cir. 1999) (providing guidance for the recalculation of fees on remand).

The applicable statute, 42 U.S.C. § 1988, allows a district court to award 

attorney’s fees to the prevailing party in civil rights cases brought under § 1983. 

The Supreme Court has explained that when a plaintiff succeeds in bringing a civil 

rights claim, “he serves as a private attorney general, vindicating a policy that 

Congress considered of the highest priority.” Fox v. Vice, 131 S. Ct. 2205, 2213 

(2011) (internal quotation marks and citation omitted). Thus, a successful civil 

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rights plaintiff “‘should ordinarily recover an attorney’s fee’ from the defendant—

the party whose misconduct created the need for legal action.” Id. (quoting 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416 (1978)). 

We review a district court’s decision to award attorneys’ fees for abuse of 

discretion. Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 

901, 904 (11th Cir. 2003) (42 U.S.C. § 1988). The question of whether a district 

court used the proper standard to award fees is a question of law we review de 

novo, and factual findings related to that question are reviewed for clear error. Id.

The district court found that Barnes was a “prevailing plaintiff based on his 

success with his procedural due process claim against Zaccari.” Order at 50 (July 

24, 2013). The district court applied the lodestar approach in determining the 

award of attorney’s fees.

8

 Additionally, the district court rejected Barnes’s 

counsel’s contention that Washington, D.C. was the relevant community for 

purposes of calculating fees. Instead, the court ruled that Atlanta was the relevant 

market. The court then ordered Barnes’s counsel to supplement their original fee 

motion with evidence regarding appropriate billing rates in Atlanta. After counsel 

submitted evidence regarding the range of rates in Atlanta, the district court found 

 

8 “In setting a reasonable attorney’s fee, a district court is required to utilize the ‘lodestar 

approach,’ which is the number of hours reasonably expended on the litigation multiplied by a 

reasonable hourly rate.” Gray v. Bostic, 625 F.3d 692, 714 (11th Cir. 2010). “A reasonable 

hourly rate is the prevailing market rate in the relevant legal community for similar services by 

lawyers of reasonably comparable skills, experience, and reputation.” Id. at 714–15 (internal 

quotation marks and citation omitted).

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that, based on its “own knowledge and experience,” the rates claimed by counsel 

were excessive and reduced the rates. Id. at 52. 

1. Hourly Rate

Barnes contends that the district court erred in imposing a maximum hourly 

rate of $315 because the court ignored record evidence submitted in support of the 

higher rates. Barnes’s attorneys had requested between $300 and $630 per hour, 

depending upon each attorney’s level of experience. Barnes, as the prevailing 

plaintiff, had the burden of establishing the claimed market rate. Dillard v. City of 

Greensboro, 213 F.3d 1347, 1354 (11th Cir. 2000). The determination of a 

reasonable hourly rate is a factual finding, which we review for clear error. Id. 

Here, the court itself requested additional evidence from Barnes’s counsel

regarding the hourly rate in Atlanta and specifically referred to that evidence in its 

ruling. Thus, we do not agree that the court ignored the record evidence. As set 

forth above, the court expressly relied upon its “own knowledge and experience.” 

Id. A district court is entitled to rely on its own experience and judgment in 

determining a reasonable hourly rate. Norman v. Hous. Auth. of Montgomery, 836 

F.2d 1292, 1303 (11th Cir. 1988). 

2. Excessive Across-the-Board Reduction of Hours

Barnes also contends that the district court erred by imposing an excessive 

across-the-board reduction of hours. The district court found that the number of 

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hours claimed by Barnes’s counsel was “appropriate” and that counsel “exercised 

appropriate billing judgment in the hours submitted to the Court. [Counsel] cut 

down the hours for which they seek fees from a raw number of 5,818.30 hours to 

3,707.30 hours.” Order at 53 (July 24, 2013) (citations omitted). Based on the 

submitted hours, the lodestar calculation was $1,012,587.25 in attorney’s fees. 

However, the district court found that the amount of attorney’s fees under 

the lodestar approach was excessive. One of the reasons that the district court 

found the amount of fees excessive was that Barnes only succeeded on the one 

claim of a procedural due process violation. As set forth previously, we are 

remanding to the district court to allow it to address the claim of retaliation. 

Because of these changed circumstances, the district court will have to recalculate 

the plaintiff’s attorney’s fee award after it addresses the retaliation claim on 

remand. 

Nonetheless, we note that Barnes’s counsel asserts that they reduced the 

number of hours submitted to the court in part because of the unsuccessful claims. 

The district court’s across-the-board reduction was also based in part on the 

unsuccessful claims. On remand, the district court must take care not to doubly 

discount the hours based on the same consideration. Cf. Bivins v. Wrap It Up, Inc., 

548 F.3d 1348, 1352 (11th Cir. 2008) (explaining that if a factor is considered in 

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determining the lodestar figure, it should not be reconsidered to further adjust the 

lodestar because “doing so amounts to double-counting”).

B. Attorney’s Fees Award to Defendants

Barnes also contends that the district court erred in awarding attorney’s fees

to the following Defendants: McMillan, Keppler, Mast, Gaskins, Morgan, and 

VSU.9

 As set forth above, a prevailing plaintiff should generally receive attorney’s 

fees from the defendant in order to reimburse a plaintiff for what it cost him to 

vindicate his civil rights. Fox, 131 S. Ct. at 2213. On the other hand, with respect 

to a prevailing defendant, there is a different standard that reflects the very 

different equitable considerations at stake. Id. In 42 U.S.C. § 1988, Congress 

intended “to protect defendants from burdensome litigation having no legal or 

factual basis.” Id. (internal quotations marks and citation omitted). Thus, a district 

court may award attorney’s fees to a prevailing defendant in a § 1983 action if the 

plaintiff’s claim was “frivolous, unreasonable, or without foundation.” Id.;

Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1188 (11th Cir. 1985). 

With respect to determining whether a claim is frivolous, the Supreme 

Court has cautioned:[I]t is important that a district court resist the 

understandable temptation to engage in post hoc reasoning by 

concluding that, because a plaintiff did not ultimately prevail, his 

action must have been unreasonable or without foundation. This kind 

of hindsight logic could discourage all but the most airtight claims, for 

seldom can a prospective plaintiff be sure of ultimate success.

 

9 Barnes does not appeal the summary judgment in the Defendants’ favor on the merits of 

the claims against them. See supra note 5.

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Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421–22 (1980). Instead, 

when determining whether a suit is frivolous, “a district court must focus on the 

question whether the case is so lacking in arguable merit as to be groundless or 

without foundation rather than whether the claim was ultimately successful.” 

Sullivan, 773 F.2d at 1189 (internal quotation marks and citation omitted). A

district court’s finding of frivolity has been upheld in cases in which a plaintiff 

fails to introduce any evidence in support of his claim. Id. (citing Beard v. Annis, 

730 F.2d 741 (11th Cir. 1984); Jones v. Dealers Tractor and Equip. Co., 634 F.2d 

180 (5th Cir. 1981); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272 (5th 

Cir. 1981); Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir. 1980)). In contrast, 

“[i]n cases where the plaintiffs introduced evidence sufficient to support their 

claims, findings of frivolity typically do not stand.” Id. (citing White v. S. Park 

Indep. Sch. Dist., 693 F.2d 1163 (5th Cir. 1982); Plemer v. Parsons-Gilbane, 713 

F.2d 1127 (5th Cir. 1983)).

In addition, the following factors are considered when determining whether 

a claim is frivolous: “(1) whether the plaintiff established a prima facie case; (2) 

whether the defendant offered to settle; and (3) whether the trial court dismissed 

the case prior to trial or held a full-blown trial on the merits.” Id. However, these 

factors are “general guidelines only, not hard and fast rules.” Id. In § 1988 cases, 

the Eleventh Circuit has provided an additional factor: the attention given to the 

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claim. A “claim is not frivolous when it is ‘meritorious enough to receive careful 

attention and review.’” Cohen v. World Omni Fin. Corp., 457 F. App’x 822, 828 

(11th Cir. 2012) (quoting Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 

1991)). “Determinations regarding frivolity are to be made on a case-by-case 

basis.” Sullivan, 773 F.2d at 1189.

1. District Court Rulings 

With respect to the first factor, the district court held that Barnes failed to 

establish a prima facie case as to all six Defendants. With respect to the second 

factor, the court recognized that VSU had offered a $5,000 to settle all claims as to 

all Defendants.10 Nonetheless, the court opined that that offer “can hardly be 

considered a serious settlement negotiation, considering that Barnes asserted 

damages for millions of dollars.” Order at 35 (July 24, 2013). As for the third 

factor, none of the claims against these six Defendants went to trial. In considering 

the fourth factor, the district court stated that there “is no doubt that this case has 

been the subject of much judicial attention in the well over five years that it has 

been pending in federal court.” Order at 27 (July 24, 2013). However, the court 

concluded that as to these six Defendants, the level of attention afforded the claims 

against them did not rise to a level of extended review that would render them nonfrivolous. 

 

10 Gaskins and McMillan state that they never engaged in settlement negotiations.

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2. Standard of Review

Accordingly, we must now determine whether the district court erred in 

ruling that Barnes’s claims were frivolous. The parties agree that we review the 

determination of whether the claims were frivolous for abuse of discretion. See 

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1179 (11th Cir. 2005) (reviewing ruling 

that plaintiff’s claims under the Americans with Disabilities Act were frivolous for 

abuse of discretion); Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303, 1304 

(11th Cir. 2001) (same standard of review in Title VII case). Of course, a “‘district 

court by definition abuses its discretion when it makes an error of law.’” Quintana 

v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005) (quoting Koon v. United States, 518 

U.S. 81, 100 (1996)). 

In determining whether a claim is frivolous, “we view the evidence in the 

light most favorable to the non-prevailing plaintiff.” Cordoba, 419 F.3d at 1179 

(emphasis in original). Thus, we view the evidence in the light most favorable to 

Barnes with respect to each Defendant in determining whether Barnes’s claims 

against them were frivolous. 

As set forth below, we are persuaded that the evidence against the six 

Defendants establishes that Barnes’s claims against them were not frivolous. Cf. 

id. at 1181 (explaining that although the plaintiff’s “case was exceedingly weak on 

this point, it was not so weak as to make it frivolous for her to argue that [her 

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supervisor’s] knowledge of her disability presented a triable issue of fact”). The 

factors regarding frivolity are general guidelines only and not hard and fast rules. 

Sullivan, 773 F.3d at 1189.11 Our precedent dictates that “[d]eterminations 

regarding frivolity are to be made on a case-by-case basis.” Id. As explained 

below, we conclude that the district court erred as a matter of law by failing to 

view the evidence in the light most favorable to Barnes. When the evidence 

against the Defendants is viewed in the proper light, we conclude that the claims 

are not without foundation. In other words, it was not unreasonable for Barnes to 

believe that the Defendants participated in his withdrawal from VSU. Cf. Bruce v. 

City of Gainesville, Ga., 177 F.3d 949, 952 (11th Cir. 1999) (finding that the 

plaintiff’s belief that he was terminated because of his disability was not 

unreasonable even though plaintiff did not “provide enough evidence to support 

denial of the [defendant’s] summary judgment motion”). Thus, as explained 

below, we conclude that the district court abused its discretion in awarding 

attorney’s fees to four of the six Defendants.

3. Frivolousness 

 

11 The other factors—(1) settlement offer (2) dismissal prior to trial and (3) level of 

attention afforded the claims—do not merit much discussion here. We are not persuaded that the 

$5,000 offer did not constitute a settlement offer, as the district court found. As for the second

factor, it is undisputed that all these Defendants were dismissed prior to trial. In any event, even 

assuming these factors weighed in favor of the Defendants, we are convinced that the evidence 

proffered against the Defendants precludes finding that the claims against them are frivolous.

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With respect to a claim of First Amendment retaliation, a plaintiff must

show that he engaged in constitutionally protected conduct and that that “conduct 

played a ‘substantial or motivating role’ in the alleged adverse employment 

action.” Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1289 

(11th Cir. 2012). To establish a claim alleging denial of procedural due process, a 

plaintiff must show: “(1) a deprivation of a constitutionally-protected liberty or 

property interest; (2) state action; and (3) constitutionally-inadequate process.” 

Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). “[A]t a minimum, the 

Due Process Clause requires notice and the opportunity to be heard incident to the 

deprivation of . . . property at the hands of the government.” Id. (citing Mullane v. 

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).As previously set 

forth, we are remanding the retaliation claim against Zaccari to the district court, 

and the retaliation claims against the other Defendants are not before us. The 

district court found in favor of Barnes on the procedural due process claim and that 

is not before us on appeal.12 To assess whether it was frivolous to bring these 

 

12 It is undisputed that Barnes did not receive notice of the charge against him prior to the 

withdrawal or any kind of a hearing to address the charge. Indeed, the district court held that 

“[t]here was never any question but that [Zaccari] [withdrew] Plaintiff Barnes from Valdosta 

State University and denied Barnes due process.” Zaccari’s defense was that because Barnes 

was a clear and present danger, the emergency excused giving Barnes notice and a hearing. The 

district court, acting as fact-finder, ruled that “Zaccari could not, and did not, reasonably believe 

there was an emergency on the campus of VSU during spring 2007.” Accordingly, there is no 

question that Zaccari violated Barnes’s procedural due process rights in withdrawing Barnes 

from VSU without notice and a hearing. 

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claims against these six Defendants, we now consider evidence offered by Barnes 

against each Defendant. 

a. McMillan (Barnes’s Therapist)

Zaccari testified that McMillan was an integral part of his investigation of 

Barnes. In her deposition, McMillan testified that she had believed that Barnes 

would benefit from taking off the summer semester in 2007. In Zaccari’s affidavit, 

he stated that he “was aware of the concerns of [Barnes’s] therapists that he was 

decompensating and could have benefitted from a semester off.” There was 

evidence that McMillan, in her role as Barnes’s therapist at VSU, shared Barnes’s 

confidential information with Zaccari without obtaining permission from Barnes. 

Viewing this evidence in the light most favorable to Barnes, McMillan’s conduct 

can reasonably be interpreted as assisting Zaccari in his efforts to have Barnes 

withdrawn and/or to punish Barnes for exercising his right to free speech. This 

conduct can be construed as a retaliatory act against Barnes. Although McMillan 

states that she repeatedly told Zaccari that Barnes did not constitute a threat to 

security, Zaccari testified that McMillan did not do so. Indeed, Zaccari testified 

that the first time he was aware of McMillan’s opinion that Barnes did not 

constitute a threat was after the withdrawal letter was delivered to Barnes. Based 

on this evidence, we conclude that it was not unreasonable for Barnes to believe 

that McMillan participated in having Barnes withdrawn. This evidence 

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demonstrates that Barnes’s claims against McMillan were not frivolous, 

unreasonable, or without foundation. Thus, we reverse the district court’s 

judgment awarding attorney’s fees to McMillan.

b. Keppler (Vice President of Student Affairs)

In determining that Keppler was entitled to attorney’s fees, the district court 

relied upon Keppler’s testimony that he had nothing to do with Zaccari’s “final 

decision” to withdraw Barnes from VSU. Order at 41 (July 24, 2013). However, 

the district court ignored testimony that implicated Keppler in the decision to 

withdraw. There were notes from a meeting attended by Keppler and Zaccari that 

indicated that Keppler supported attempting to withdraw Barnes from VSU on an 

academic basis. Further, in Zaccari’s June 21, 2007, letter to VSU’s Board of 

Regents, he stated that to determine what actions should be taken with respect to 

Barnes, he “sought the advice” of members of his administrative unit, which 

included Keppler. The letter provided that Zaccari and his administrative unit 

“collectively decided that VSU [should] take necessary steps to minimize as much 

as possible any security risks.” Similarly, Zaccari testified that at a meeting on 

April 26, 2007, which included Keppler, “there was agreement from the group for 

us to initiate the plan that [he had] outlined.” Zaccari further testified that no one 

at the meeting expressed disagreement with him. Viewing this evidence in the 

light most favorable to Barnes, we conclude that it was not unreasonable for 

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Barnes to believe that Keppler participated in having Barnes withdrawn. Barnes’s 

claims against McMillan were not frivolous, unreasonable, or without foundation. 

Therefore, we reverse the district court’s judgment awarding attorney’s fees to 

Keppler. 

c. Mast (Dean of Students)

The district court awarded attorney’s fees to Mast, stating that Barnes 

primarily relied upon “Mast’s alleged lack of action and his omissions as opposed 

to any affirmative action.” Order at 41 (July 24, 2013). The court further stated 

that Mast attended meetings that were called to discuss Barnes, “but Mast agreed 

with Keppler that Zaccari’s response was an overreaction.” Id. After reviewing 

the record, we are persuaded that the district court did not view the evidence in the 

light most favorable to Barnes. We note that although Mast may not have 

interpreted Barnes’s conduct as threatening, he testified at his deposition that he 

did not inform Zaccari of his opinion. Additionally, Zaccari’s letter to the Board 

of Regents states that “Mast provided a copy of a document generated by Mr. 

Barnes, wherein he had posted my picture on an image of a parking deck with the 

words, ‘S.A.V.E. – Zaccari Memorial Parking Deck.’” It would not be 

unreasonable for Barnes to construe Mast’s giving this document to Zaccari as 

assistance in building a case to withdraw Barnes. Moreover, the record contains 

notes from a meeting indicating that Mast suggested that Barnes’s “veiled threat” 

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could be used as a basis for withdrawal for disorderly conduct. Again, we note 

that although Mast testified that he did not give Zaccari the above-referenced 

image generated by Barnes and that he did not remember suggesting a basis for 

Barnes’s withdrawal during the meeting, we must look at the evidence in the light 

most favorable to Barnes. In that light, we cannot say that Barnes’s suit against 

Mast was frivolous, unreasonable, or without foundation. We therefore reverse the 

district court’s judgment awarding attorney’s fees to Mast.

d. Gaskins (VSU In-House Counsel)

Gaskins met with Zaccari on April 26, 2007, to discuss possible avenues for 

withdrawing Barnes from VSU. In her deposition, Gaskins admitted that she 

researched different VSU policies that could possibly be used to withdraw Barnes,

and that she provided the results of that research to Zaccari. Gaskins also attended 

the May 3 meeting with Zaccari and other staff members in which Zaccari

announced his decision to administratively withdraw Barnes. With respect to that 

meeting, this Court’s opinion in the instant case’s interlocutory appeal provided 

that Zaccari “did not ask those present [at the meeting] if he was making the right 

decision, and no one told him he was.” Barnes, 669 F.3d at 1301. Nonetheless, 

viewing the evidence in the light most favorable to Barnes, we stated,

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“Collectively though, the group agreed that Barnes should be withdrawn on May 7, 

a full four days later.” Id.13

At Zaccari’s request, Gaskins drafted the letter that withdrew Barnes from 

VSU. On appeal, Gaskins relies heavily on the fact that she advised Zaccari in an 

attached memorandum that Barnes was entitled to a hearing. Although this 

evidence indicates that Gaskins did not participate in violating Barnes’s due 

process rights, it does not mean that she had no involvement in assisting Zaccari in 

having Barnes withdrawn in retaliation for exercising his First Amendment rights. 

During his deposition, Mast testified that Zaccari said that he made the decision to 

withdraw Barnes from VSU “based on advice of counsel, University counsel, and 

Board of Regents’ attorney.” Additionally, after Barnes was withdrawn, the Board 

of Regents directed Zaccari to respond to Barnes’s request for a review of the 

withdrawal. Zaccari asked Gaskins to review the response he had drafted so that 

he could fully explain why he made the decision to withdraw Barnes. Gaskins 

testified that the draft response Zaccari gave her was in “very, very rough form,” 

and that she recommended modifications to the document. 

Viewing the evidence in the light most favorable to Barnes, Gaskins:

(1) researched VSU policies that could be used to withdraw Barnes; (2) drafted the 

 

13 However, we note that Zaccari’s letter to the Board of Regents did not name Gaskins 

as part of his administrative unit that “collectively decided that VSU take necessary steps to 

minimize as much as possible any security risks.” Zaccari’s letter never mentions Gaskins.

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withdrawal letter that she knew would violate Barnes’s due process rights if signed 

by Zaccari and delivered to Barnes without notice and a hearing; and (3) assisted

Zaccari in defending his actions to the Board of Regents. Under these 

circumstances, it was not unreasonable for Barnes to believe that Gaskins 

participated in his withdrawal from VSU. We are thus unconvinced that Barnes’s 

claims against Gaskins were frivolous, unreasonable, or without foundation. 

e. VSU and Morgan (Counseling Center Director)

Barnes’s brief does not specifically challenge the district court’s ruling that 

his claims against Morgan and VSU were frivolous. Thus, Barnes has abandoned 

any challenge to the judgment awarding those attorney’s fees. See Timson v. 

Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Nonetheless, because the district 

court awarded the attorney’s fees in a lump sum to VSU, Keppler, Mast, and 

Morgan, and did not distinguish the amount of attorney’s fees awarded as to each 

Defendant, we must remand to allow the district court to recalculate the attorney’s 

fees award to reflect only “reasonable attorney’s fees incurred because of, but only 

because of, frivolous claim[s]” against Morgan and VSU. Fox, 131 S. Ct. at 2215.

In sum, because there was evidence showing that each of the first four

Defendants took part in the decision to withdraw Barnes, the district court erred in 

finding that the claims were frivolous. Compare Richardson v. Bay Dist. Sch., 560 

F. App’x 928, 930 (11th Cir. 2014) (explaining that “[j]ust because this evidence 

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was ultimately not enough to create a jury question with respect to discrimination 

on the basis of gender discrimination does not make [the plaintiff’s] claim 

frivolous”), with Cazares, 638 F.2d at 1290 (upholding award of attorney’s fees 

because “there was no material, admissible evidence to support [the plaintiff’s] 

civil rights claim”). We therefore hold that the district court abused its discretion 

in ruling that Barnes’s claims against McMillan, Keppler, Mast, and Gaskins were 

frivolous, and we reverse the court’s judgment awarding attorney’s fees to those 

Defendants. With respect to the fees awarded to Morgan and VSU, we vacate the 

judgment awarding those fees and remand to allow the district court to recalculate 

the attorney’s fees award to reflect only the attorney’s fees incurred because of the 

frivolous claims against Morgan and VSU. 

IV. CONCLUSION

For the foregoing reasons, we vacate and remand the grant of summary 

judgment with respect to the retaliation claim against Zaccari, and we vacate and 

remand the judgment awarding attorney’s fees to Barnes. We reverse the award of 

attorney’s fees to McMillan, Keppler, Mast, and Gaskins. Finally, we vacate and 

remand the award of attorney’s fees to Morgan and VSU.

VACATED AND REMANDED. 

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